Access to Information Policy p5

Appendix A - Environmental Information Regulations 2004

Where an access request is for Environmental Information it should be dealt with under the Environmental Information Regulations 2004 (EIR).

These regulations have been written to take account of FOI legislation and as such share many common elements, however a few notable differences exist in that:

a) requests can be verbal or in writing;
b) there is no pause in the 20-day response time whilst charges for the supply of information are being negotiated;
c) there is no upper limit for charges above which a request can be refused;
d) there is no fee structure, but charges must not exceed the costs reasonably attributed to the supply of the information;
e) the response time can be extended in line with the regulations in the case of complex or voluminous requests; and
f) the public interest test (Appendix E) is applied in each potential case of refusal based on an exemption.

Environmental Information is taken to mean information that relates to:

a) the state of the elements of the environment such as: -

Air and atmosphere
Water
Soil
Land
Landscape and natural sites, wetlands and coastal and marine areas
Biological diversity and its components including genetically modified organisms.

b) the interaction between the elements in (a) above;
c) factors such as substances, energy, noise, radiation or waste;
d) emissions, discharges and other releases into the environment;
e) environmental measures such as policies, legislation, plans, programmes and agreements;
f) cost benefit and other economic analyses and assumptions used in environmental decision making; and
g) the state of human health and safety, conditions of human life, cultural sites and built structures in as much as they are affected by anything above.

Routinely produced environmental information and specialist reports should wherever possible be included within the Publication Scheme.

Appendix B - The Publication (Public Information) Scheme

The Council will endeavour to be as transparent and open as possible.

There will be a presumption in favour of public access to all information held, unless there is a statutory or compelling business reason against publication.

The more information that is pro-actively made available via the scheme the better.

It will demonstrate the Council’s willingness to adopt an open approach to its business and will also help to reduce the number of ‘one off’ access requests that would otherwise involve staff in the potentially resource-hungry activities of locating, retrieving, collating, editing, reproducing and dispatching information.

For the scheme to work as effectively as possible all staff will need to accept responsibility for identifying existing or new information that may be suitable for inclusion.

Such information should be brought to the attention of the director or head of service, who will determine whether the information should be included.

When considering the best medium of publication of new information, the Council are committed to using electronic means in the first instance.

General criteria for inclusion:

The focus should be on information that: Is known to be of public interest, and/or contributes to the principle that the Council’s activities and decision-making processes should be seen to be open and transparent, e.g. internal policies and procedures, codes of practice, strategies, plans, minutes of key meetings, etc.

What type of information may be suitable?

Committee agendas, reports and minutes that are already routinely made publicly available.
Records of other meetings that contain background information in respect of decision-making processes and which would be in the public interest.
Strategies, service plans, business plans, policy documents, codes of practice, procedural documents, consultation documents and other information that would fall into this category.
Any documentation that explains how the Council assesses whether an individual is eligible for service provision, e.g. assessment criteria, eligibility criteria information.
Information that the Council already knows is regularly requested.

What type of information may not be suitable?

Whilst it is clearly desirable to make as much information pro-actively available as possible it is also essential that the published information is properly managed and maintained.

There is little value in information that has been superseded, is out of date or obsolete or simply no longer relevant.

Teams need to be mindful of the potential resource requirements of managing large quantities of published information and ensure that they have made arrangements to maintain it in good order.

In view of this it is worth thinking initially about excluding information that:

Has a very short shelf life and/or will require frequent updating.
May be of interest to the public, but which is not in the public interest. These two things are not the same.
Is largely exempt and will require major editing/redacting (editing or revising a piece of writing) to make it suitable for inclusion.

Some tips about publishing information

It may be possible to anticipate requests, particularly where there are major local issues that are likely to attract public attention. In these cases, it would be sensible to include background papers and information in the scheme from the outset.
Consider whether information that is sensitive or exempt can be included within appendices, so that the main body of the report can be included in the catalogue. Considering the structure of reports in this way will make access requests easier to respond to in the long run. Remember a whole report is not exempt if just a few paragraphs contain sensitive material.
When information is produced or generated consider whether it is appropriate for inclusion within the scheme and if it is follow the procedures to make sure this happens. Remember that the catalogue is a ‘living’ index of current information that the Council believes to be in the public interest, and which promotes openness and transparency of decision-making.

The publication scheme is intended to be organic and to grow and must be kept up to date.

It shall be the teams’ responsibility to up-date their respective parts of the scheme, and to notify the Policy Team of any changes made.

Appendix C - What Is a Request for Information?

The Council routinely provides information as part of its normal Council functions on a day-to-day basis.

The access regimes under Environmental Information Regulations, the Freedom of Information Act and the General Data Protection Regulations (GDPR) are so broad that they have the potential to encapsulate most of what the Council does routinely.

This guidance note sets out what the triggers will be for engaging the official process for dealing with requests for information under the above legislation.

The following will not, as a rule, engage the official request for information process:

If the information is reasonably accessible to the public by such means as it being published on the internet, noted in the publication scheme, or available for inspection, then this will not routinely trigger a request for information.
This may include information leaflets, published reports or general information on the internet.
Information that is released as part of the Council’s normal business process.
The Council routinely provides information as part of their day to day processes, for example Minutes of Council Meetings, Strategies and Plans etc.
Requests for information are not intended to replace existing business systems that are functioning adequately.
Correspondence that is not a request for information.
Requests that do not include a name and address for correspondence (or an email address).

It is important for all staff to recognise official requests for information at an early stage.

These requests must be directed to the Policy team who will enter the details into the official Council’s system for managing requests.

This is to ensure that the Council can comply with the request within the legislative time periods and to enable sufficient monitoring and auditing of the Council’s compliance.

Examples of when official requests for information should be logged are:

Requests that consciously engage any or all of the information access regimes.
Those requests being, for example, requests which specifically mention their right of access under FOIA, DPA, GDPR or EIRs.
Where the public authority requires further information from the applicant in order to identify and locate the information requested.
Requests that will not receive a reply within ten working days from the date of request.
Requests which result in information being withheld for any reason under an exemption or exception from the right of access.
Requests that are not processed because the public authority estimates the cost of compliance would exceed the appropriate limit.
Requests that are not processed because the public authority considered the request to be vexatious or repeated.
Requests that may prejudice third parties and/or the Council, its Members or its staff.

Appendix D – Refusing a Request for Information

Whilst the Freedom of Information Act provides for the right of access to information held, it also affords a number of exemptions from this right, in order to permit public authorities to withhold some or all of the information requested, where a justifiable reason exists.

Requests for information that are deemed to be vexatious or repeated can also be refused.

The exemptions fall into two categories:

Absolute Exemptions. Where a public authority may withhold the information without considering any public test arguments.
Qualified Exemptions. Although an exemption may apply to the information, it will, nevertheless, have to be disclosed, unless it can be demonstrated that the public interest in withholding the information, is greater than the public interest in releasing it.

1. Absolute Exemptions

The absolute exemptions that are most likely to apply to the Council are:

Information accessible by another means, (Section 21).
This applies to information that is reasonably accessible to an applicant through another source, even if it is available only on payment.
This type of information could be:
- included in the Council’s Publication Scheme (Appendix B)
- Information accessible through the Council’s web-site
- Books, leaflets etc. published by the Council
- Information available under existing legislation, e.g. Planning Applications.
  The applicant should be directed to where the information can be found and may need to receive advice and assistance on how to access the information.
Information in court records (Section 32).
This includes information in documents served for the purposes of legal proceedings, filed with a court, or held by a person conducting an inquiry or arbitration.
Personal information relating to the subject (Section 40).
This exemption is only absolute in respect of requests by applicants to access their personal information.
Such requests will continue to be dealt with under the Data Protection Legislation.
Information provided in confidence (Section 41).
This exemption only applies to information provided in confidence to the authority by external persons or agencies, including other public authorities, and where disclosure would result in an actionable breach of confidence.
This means that the Council would need to apply the common law test for breach of confidence which includes an inherent public interest test.
The Code of Practice under Section 45 of the Act states that a public authority should only accept information in confidence from third parties if it is necessary to obtain that information in connection with any of the authority’s functions.
Information that is prohibited from disclosure by law (Section 44).
This applies to information the disclosure of which is prohibited by any legislation, or European Community obligation, or if disclosure would be a contempt of court.

2. Qualified Exemptions

The qualified exemptions most likely to apply to the Council are:

Information intended for future publication (Section 22).
This applies where the Council plans to publish information in the future, normally in its Publication Scheme, and it is reasonable, at the time the request is made, not to disclose it until then.
It may also apply to information relating to research projects or surveys where it would be inappropriate to release the information until the project has been completed.
In other cases, where information is due to be published, the applicant must be informed when such publication is planned.
Investigations/proceedings conducted by public authorities (Section 30).
This exemption covers information relevant to criminal investigations and proceedings, and information obtained from confidential sources for criminal or civil proceedings.
Law enforcement (Section 31).
This exemption applies to information, the disclosure of which would be likely to prejudice: the prevention and detection of crime; the apprehension and prosecution of offenders; the administration of justice.
Prejudice to the effective conduct of public affairs (Section 36).
This exemption can only be applied by a ‘qualified person’. In the case of the Council this is the Chief Executive.
Health & Safety (Section 38).
This exemption applies to information which would, or would be likely to, endanger the physical or mental, health or safety of any individual.
Environmental Information (Section 39).
This exemption allows for the disclosure of environmental information under the Environmental Information Regulations (EIR), see Appendix B.
Personal information relating to a third party (Section 40).
Broadly speaking requests for information about someone else will be dealt with under FOI, but disclosure should not be made if it would breach any of the Data Protection principles, or the third party has not been made aware of the disclosure.
Legal professional privilege (Section 42).
This applies where a claim to legal professional privilege could be maintained in legal proceedings.
This exemption qualifies the rights of access under the Act by reference to a particular rule of litigation.
According to that rule, legal professional privilege (“LPP”) protects confidential communications between lawyer and client and certain other material created for the purpose of the litigation, by way of an exception to the general rules of disclosure applicable to civil and criminal litigation.
If material is subject to LPP a party does not have to disclose it during the course of legal proceedings.
The identification of LPP material is a question of law and legal advice must be sought before applying this exemption.
Commercial interest (Section 43).
This exemption applies to trade secrets and to information, the disclosure of which would, or would be likely to, prejudice the commercial interests of any person including the authority.
This is the exemption which would be relevant to most commercially sensitive information held by local authorities, however, it would need to be demonstrated how disclosure would affect the commercial interest and is further subject to a public interest test.

A full list of the exemptions under the FOI Act are available from the Information Commissioner’s website.

For EIR exceptions, rather than exemptions may apply, most exceptions are subject to the public interest test; more information can be found on the Information Commissioner's website.

3. Vexatious and Repeated Requests

In determining whether a request should be refused because it is considered vexatious, account must be taken of:

The history of requests submitted by the applicant;
Repeat requests submitted by the application (see below); and
Whether an applicant is habitually and persistently submitting requests where there appears to be no reasonable grounds for them to do so and where there is a strong likelihood that such requests are being made to intentionally cause harassment, divert resources and to disrupt the proper workings of the Council.

The term vexatious must be applied to the activities of the applicant based on substantiated evidence and not to the applicant themselves.

Repeated Requests

In determining whether a request should be refused because it is considered to be repeated account should be taken of:

The time that has elapsed since the previous request;
Whether the request is identical or substantially similar to the previous request; and
Whether the information has changed or new information has been generated. In this case it would be reasonable just to provide the new information.

Appendix E - The Public Interest Test

Where the Council wishes to apply one of the qualified exemptions to prevent disclosure of the information requested, it will have to consider the public interest in maintaining the exemption.

The public interest test requires that information should be withheld under exemption if, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

Generally, the public interest is not necessarily what the public are interested in, i.e. matters that the public may be curious about, interested in or amused by, but more about information that could benefit the wider community if it were to be made available.

Disclosure should be considered to be in the public interest where it would:

Further the understanding of and participation in public debate
Promote accountability and transparency by public authorities for decisions taken by them
Promote accountability and transparency in the spending of public money
- Allow individuals to understand decisions made by public authorities affecting their lives and, in some cases, assisting individuals in challenging those decisions
Inform the public of any danger to public health and safety
Contribute to the administration of justice, enforcement of the law.

Factors such as embarrassment, risk of misinterpretation and the seniority of the Officer involved are not to be considered when determining the Public Interest.

Access to Information Policy